Citation Nr: 18161310 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-06 377 DATE: December 31, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the Board finds the Veteran’s currently diagnosed bilateral hearing loss was incurred during active service. 2. Resolving all doubt in the Veteran’s favor, the Board finds the Veteran’s tinnitus is related to his combat service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served as in Light Weapons Infantry in the United States Army from May 1970 to December 1971. He is a Veteran of the Vietnam Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App.at 89. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that the current disability is the result of an injury or disease incurred in service; the determination of which depends on a review of all of the evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Additionally, other organic diseases of the nervous system, such as sensorineural hearing loss, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran’s separation from service. Walker, 708 F.3d at 1338. In this case, the Veteran contends that his hearing worsened during service because of his military occupational specialty (MOS) in light weapons infantry. Parenthetically, while the Veteran has apparently conceded some hearing loss disability at the time of entry into service, the Board does not find that an actual hearing loss disability was demonstrated at that time, that the presumption of soundness therefore applies, and that the issue on appeal is entitlement to service connection on a direct basis. The Veteran further maintains that he frequently engaged with the enemy in firefight and was not afforded ear protection. Due to the loud noise of gunfire, his hearing worsened and has continued to decline since service. The Veteran has experienced a continuity in symptomology. In a primary care clinic process note from December 2004, the Veteran notes a decrease in hearing and tinnitus. In another follow-up appointment from March 2005, it notes “barriers to learning: hearing” and that he continues to experience decreased hearing and tinnitus. The Veteran maintains that he has trouble hearing people talk to him and must have statements repeated to him all the time. Further, he says that he must turn the TV louder than others prefer because he is unable to hear. The Board finds the Veteran competent and credible to ascertain whether he is suffering from problems with hearing and has experienced such problems since service. The Veteran was afforded a VA examination in connection with his claim in May 2015. The results from his pure tone threshold and speech discrimination test both show evidence of bilateral hearing loss. The examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range of 500-4000 Hz and in the range of 6000 Hz or higher for both the right and left ears. The examiner was unable to provide an opinion as to whether the Veteran’s bilateral hearing loss is at least as likely as not (50 percent or greater) caused by or a result of an event in service without resorting to speculation. This was as a result of the fact that upon separation from the Army, the Veteran did not have a hearing test conducted. The Veteran’s service treatment records (STRs) show a mild hearing loss at the time of entrance into the Army. Due to the lack of hearing test results from separation, the examiner determined it was impossible to ascertain whether the current hearing loss is attributable to noise exposure from time in service. The Board affords this opinion with some probative value. In an audiometry examination from January 2016, the audiologist made the determination that “[i]t is as likely as not that his bilateral hearing loss and tinnitus are related to his military noise exposure” and that he has “mild to profound sensorineural loss bilaterally with right ear being worse. Good speech discrimination bilaterally using Maryland CNC list.” Accordingly, the Board also affords this opinion with some probative value. Therefore, affording the Veteran the benefit of the doubt, after taking into consideration the Veteran’s lay statements and the results from his hearing tests, and there being one opinion in favor of the claim and one examiner unable to provide an opinion without speculation, the Board will find that as a result of the continuity of symptomology and the Veteran’s active duty service in the infantry, service connection for bilateral hearing loss is warranted. Entitlement to service connection for tinnitus The Veteran asserts that he suffers from tinnitus, again, as a result of the lack of protective wear to cover his ears while serving in the infantry in Vietnam. Tinnitus is a chronic disease afforded the relaxed standard where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). Tinnitus is a disorder uniquely discernable by the senses. The Veteran reports tinnitus has been present for as long as he can remember and he is unable to recall any specific circumstances as to when it began. He further reports that it is present all the time and it seems to affect his hearing. The Board finds the Veteran competent and credible with respect to his observable symptoms of tinnitus. The Veteran was also examined for tinnitus by the VA to determine the etiology. The examiner was again unable to determine whether the Veteran’s tinnitus is at least as likely as not (50 percent or greater) caused by or a result of an event in service due to uncertainty regarding the etiology of hearing loss. The Board assigns some weight to the findings from the examination. In the subsequent examination from January 2016, the audiologist made the determination that “It is as likely as not that his bilateral hearing loss and tinnitus are related to his military noise exposure.” Therefore, once again affording the Veteran the benefit of the doubt, and there being one opinion in favor of the claim and one examiner unable to provide an opinion without speculation, the Board will find that as a result of the continuity of symptomology and the Veteran’s active duty service in the infantry, service connection for his tinnitus is also warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher J. DeBoer, Law Clerk